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HIR Book Review

Illegal Construction: a Legal Deconstruction

By Max Davis

Two years ago, Nagi Musah Farage and Muhamad Musah Farage, Arab brothers owning land in the Jerusalem neighborhood of Beit Hanina, found that Khaled El Natshe, an Arab builder, had begun construction on property belonging to their father’s estate. El Natshe responded to requests that he cease building on the land by threatening the brothers’ lives. Eventually, the Farages wrote to the Jerusalem municipality for aid in halting the illicit construction. The Farages’s May 2001 letter to the Jerusalem municipality joined requests by other Arab landowners, such as the Maronite Church and the Sheikh of the Jerusalem Uzbeke community, who have turned to the Jerusalem government for aid in halting illicit, intrusive construction by fellow Arabs. Beyond defiling personal land ownership rights, illegal construction in Jerusalem neighborhoods has marred city planning of such infrastructure as roadbeds, waterlines, and electricity. Ignoring the need for city planning in the maintenance of both largely Jewish and largely Arab neighborhoods of Jerusalem, pro-Palestinian groups have typically assailed any municipal efforts to curb zoning violations and illegal construction in the Arab sector as discriminatory.  Deriding development of the Jewish sector as a product of favoritism, a cacophony of critics claim to find discrimination lurking in every Jerusalem city planning ordinance. For example, Amnesty International dismissed objections that the demolition of illicit structures results from their violations of planning codes and is carried out on structures built by Arabs and Jews alike, suggesting instead that “Palestinians are targeted for no other reasons (sic) than that they are Palestinians.” The propagation of such faulty claims and Israel’s subsequent attempts to respond to criticism by curbing demolition and other enforcement measures against illegal developers, has encouraged further illict construction that hinders development of roads, schools, and other important neighborhood services.

None of the critics of Jerusalem’s building codes have undertaken a comprehensive scholarly review of Jerusalem’s urban planning policy. Disturbed by the proliferation of unsubstantiated and accusatory rhetoric, Justus Weiner, an international human rights lawyer, member of the New York and Israel Bar Associations, and Scholar-in-Residence at the Jerusalem Center for Public Affairs, an independent think-tank, initiated his own investigation of Jerusalem’s urban planning policy. Following up on his previous articles in acclaimed law journals, magazines, and newspapers, including “‘My Beautiful Old House’ and Other Fabrications by Edward Said,” published in Commentary, he presents his findings on Jerusalem building codes in Illegal Construction in Jerusalem: A Variation on an Alarming Global Phenomenon (Jerusalem Center for Public Affairs: 2003).   His book is clear and to the point, using historical, legal, and governmental sources to demonstrate the Jerusalem municipality’s continued cooperation with Arab neighborhoods in planning and enforcing construction laws.

Weiner examines claims that attribute disparities in municipal services to discriminatory budget allocations, exposing a far more complex reality of historical and political obstacles to development in the Arab sector. Making no assumptions about his reader’s knowledge base, Illegal Construction provides all the historical background necessary to attain a thorough understanding of the present urban planning situation in Jerusalem. Weiner explains that prior to 1967, the Jordanian controlled sector of Jerusalem was not subject to serious urban planning, leaving many residents without access to medical, water, electricity, or sewage systems. When Jerusalem was united after the 1967 War, Israel sought to remedy the situation of Arab residents underserved by the Jordanian government by investing in services for Jerusalem’s Arab sector.

Israel’s efforts to provide better municipal services to the Arab sector continue, but have been made more difficult by both the low-density housing pattern of many Arab neighborhoods, and the erection of illegal structures that do not comply with municipal zoning laws and sometimes, as in the case of encroachment onto the Farages’s land, do not even respect personal property rights. Weiner explains that “unchecked building of thousands of illegal, free-standing structures on open land dramatically increases the City’s costs in bringing electricity, water, paving roads, sidewalks, parking, etc. to the dispersed living units.”

With the Palestinian intifada tightening the City’s budget, all Jerusalem neighborhoods have had to contend in the political arena for funding. Weiner propounds that attempts to further aid Arab neighborhoods, while they continue, have been slowed by the longstanding Palestinian boycott of Jerusalem’s political process. According to Weiner, critics of the city’s policies seldom acknowledge the boycott’s existence and its adverse affects on the Arab sector.  Despite attempts by recent mayors Theodore Kollek and Ehud Olmert to encourage Arab involvement in city politics, potential candidates for mayor and city council have been wary of violating the Palestinian boycott.  One recent candidate found his cars torched and another alleged that the Islamic terrorist organization Fatah and other PLO activists had beaten members of his campaign staff. Those Palestinians who have shown up at the polls have received thinly veiled threats from such ‘activists.’ Under-representation of the Arab sector in municipal politics is the end result.  A dearth of Arab politicians lobbying for the needs of their neighborhoods has led to the division of much of the limited municipal funds among those who seek them through the political system—primarily Jews.

In his effort to assess the fairness of Jerusalem municipality city planning codes, Weiner offers an instructive comparison of the Arab sector and the ultra-orthodox Jewish sector, which rejects the Israeli political system on religious grounds.  Both communities are in similar socioeconomic straits and both reject engagement in Israeli politics. However, the ultra-orthodox have been more willing to elect representatives to the city council as the community recognizes that it requires lobbyists in place to secure desperately needed funding and the community lobby has produced tangible results.

Weiner notes that despite the illegal construction carried out in many of the Arab neighborhoods as well as the Palestinian boycott of Israel’s democratic elections, the Jerusalem municipality has undertaken significant steps towards achieving infrastructural parity between all neighborhoods.  In May 1997, the municipality initiated a campaign of improvement projects in Arab neighborhoods.  Construction of roads, schools, drainage systems, playgrounds, gardens, and community centers proceeded at a cost of 207.8 million shekels (aprox. $45 million) until sorely needed national funding ran dry.  In 2001, then-Prime Minister Ariel Sharon reopened the national funding spigot providing 65 million shekels to supplement municipal spending on the earlier projects.  Unfortunately, more funding will be necessary to fulfill former-mayor Olmert’s stated goal of providing equal services to all neighborhoods. At the same time, the three years of intifada that have hurled the country into recession and soaked up municipal funds. Necessary security measures consume money that would otherwise have been used to better the quality of life of all residents.

In addition to explaining the challenges that Israel has faced in aiding the development of the Arab sector, Weiner analyzes the argument made by those who build illegally that the process of obtaining the necessary permits is arduous and biased aganist Arabs. He demonstrates that obtaining a construction permit in Jerusalem entails a just and reasonable process. The process of obtaining a construction permit is identical for all potential builders.  Fees—typically $3,000 for water and sewer hookups, not $30,000, the price for housing permits cited by the Palestinian paper, The Jerusalem Times—are tempered by a sliding scale in Arab and Jewish neighborhoods alike.  Further allegations by The Jerusalem Times that “one to three years” are required to obtain a permit, are belied by the reality, that the typical wait for a building permit is six weeks, a period comparable to the wait time in London.  Furthermore, the city has gone to considerable lengths to aid Arab architects and engineers who do not speak Hebrew to apply for building permits by providing information in Arabic through planning brochures, Jerusalem’s Arabic website, and individual assistance from Arabic speaking city employees.  Within the past three years, municipal efforts to facilitate planning and development in Arab neighborhoods have paid off, with groups concerned for the neighborhoods of Isawiya, Sur Baher, A-Tur, and Jabel Mukaber overcoming the risk of being labeled collaborators with Israel to request municipal aid in urban planning. One of Weiner’s copious appendix diagrams illustrates markedly similar percentages of building permit application approvals in the Arab and Jewish sectors, with even greater percentages of Arab sector applications approved than those from the Jewish sector in 2001.

Unfortunately, notes Weiner, during the past decade, thousands of structures have been built without permits in Arab neighborhoods. Some of them are structurally unsound, proving to be dangerous, while others occupy land designated for schools and roads.  Still other buildings are located on land stolen from neighbors. More than once, rightful owners, including the Farages, have approached the City requesting help.  Weiner highlights these realities, which are seldom reported by the media, noting that illegal structures, whether in Arab or Jewish neighborhoods, are subject to the same code of punitive measures.  

Weiner also addresses what is perhaps the most contentious issue in the battle over urban planning in Jerusalem: the demolition of structures by the municipality.  Weiner stresses that the city of Jerusalem demolishes structures only if there is no way to incorporate them into city plans even retroactively, such as if a structure is illegally built on the planned site of a major roadbed. In such cases demolition orders are carried out in Jewish as well as Arab neighborhoods. There is a careful process in place to ensure a just system for determining what structures are to be demolished. Structures are subject to demolition only if the engineer of the local authority verifies that the building was constructed without a permit or does not conform to building codes. In such circumstances, the city demolishes the building only if the building has been standing for less than 60 days and no one has been living in it for more than 30 days.

Appeals to the legal system halt demolitions, and augment the fairness of the demolition process. The result of Jerusalem’s demolition regulation policies, contrary to what many critics claim, is a low annual number of demolitions.  Weiner’s appendices provide revealing statistics.  In 2001, of 1,141 cited building violations in Arab neighborhoods, 32 resulted in demolitions.  Twenty-six demolitions resulted from 1,314 violations the year before.

When demolitions do occur, they are frequently the object of media circuses, which make them appear much more frequent than they are.  Weiner is not the first to document the orchestration of street theater by pro-Palestinian groups for the benefit of television audiences.  A structure constructed completely at odds with neighborhood urban plans and uninhabited until immediately prior to its demolition quickly becomes the home of a large, poor family, “forced out of their house in the middle of a rainy winter, on the order of the Mayor.”

Contrary to claims that it is the unjust process of granting building permits that drives illegal building, Weiner identifies extensive Palestinian Authority subsidies as well as individual criminal behavior as the two primary factors motivating recent illegal construction sprees.  The Palestinian Authority encourages construction with no regard for longstanding urban plans and little thought towards land ownership.  In one of more than a dozen specific examples reported by Weiner, “Khalid Tufakji, a Palestinian demographer who worked out of Orient House (then the PLO’s political headquarters in Jerusalem)…stated, ‘[w]e can build inside Jerusalem, legal, illegal—rebuild a house, whatever we can do. Maybe we lose ten houses, but in the end we build 40 more houses in East Jerusalem.’”

Lax municipal enforcement has encouraged developers to resort to criminal behaviors that exploit neighborhoods for profit.  Developers reduce costs by avoiding permit fees and taxes and by ignoring construction safety codes.  Such criminal activity undermines the municipality’s best efforts to bolster Arab involvement in local politics and city planning. Weiner uses the Arab neighborhood Hod El Tabel to illustrate criminal developers’ disregard for city planning. Hod El Tabel had signed a “treaty” with the municipality. (“Treaties” are used by the city as a means of fostering greater Arab involvement in city planning.  The municipality delegates planning power to the residents of particular neighborhoods and promises to halt demolition operations in exchange for the cessation of illegal construction). Residents of Hod El Tabel lodged complaints with the Mayor’s Office alleging that builders who were not party to the treaty, including criminal developers and Palestinians attempting to become Jerusalem residents, were building illegally.  In particular, plans for roads and a school were hindered by illicit construction. In Hod El Tabel, as in other areas, the City was reluctant to turn to demolition for fear of the typical political backlash. Residents ultimately lost faith in the city’s enforcement of planning law and resorted to preventing illegal construction on their property by building protective concrete fences. In this case, the municipality failed Hod El Tabel and avoided demolition at great cost to its Arab residents. The situation of urban planning in Hod El Tabel is one of the many instances that is not highlighted by Western media coverage, but casts a different light on Jerusalem’s building policies and ought to give even the city’s most ardent critics pause.

While urban planning in Jerusalem residential neighborhoods has been a highly contentious issue in itself, even more entangled questions of what constitutes illegal building about sites of particular religious significance, such as the Temple Mount or the West Bank, have brought further urgency to investigations of Israeli urban planning policy. Weiner’s Illegal Construction in Jerusalem is rife with statistics, charts, graphs, and photographs that attempt to unmask the true effects of Israeli building codes on the neighborhoods they govern, giving pause to readers steeped in unsubstantiated claims of Israeli discrimination. His meticulous work gives readers an appreciation for the indispensability of city planning to Jerusalem and the challenges confronting those who struggle to implement municipal policy on a daily basis.

Max Davis, Harvard Class of 2004, is from Charlestown, Virginia.

This Issue

HIR Notebook
Compiled by the editors

What Many Liberals Can't See Arthur Hertzberg

The Costs of U.S. Aid to Israel
Daniel Feith

Reviving Religious Zionism
Daniel Shoag

Hudna-winked: How Hamas Fooled the Media
Adam Levine

HIR Book Review - Illegal Construction: a Legal Deconstruction
Max Davis

Security Fences Make Good Neighbors
Eric Trager

The State of the Jewish State
An Interview with Efraim Karsh